++ Action Item: Please review the article below, “Forever a Public Servant” in support of ongoing advocacy, Patent Infringement Advocacy Alert: Canadian Patent ruling locks out retired Canadian Armed Forces (CAF) Veterans from advancing Canada’s innovation nation.
FOREVER A PUBLIC
A ground-breaking Federal
Court of Appeal decision
impacts all retired military
by Edward W. Claxton (Esprit de Corps Vol :23, Issue 3)
A GROUND-BREAKING COURT decision received
scant media coverage, but it could render a tremendous
impact on retired military personnel. In February, the
Federal Court of Appeal ruled that anyone whose
name is on the Canadian Armed Forces Supplementary
Reserve List — even if they receive no pay or benefits
— is still a public servant.
At issue is the case of Louis Brown, who retired from the
military in 1993 to start his own company that was in the business
of manufacturing chemical resistant shelters. In 1999, Brown
patented his technology for both Canadian and U.S. markets.
Brown offered his shelters to Public Works in 2009, but they
promptly took his patent and contracted a U.S. firm to build
the shelter instead. The rationale offered by Public Works, and
upheld by the Federal Court, was that since Brown was still listed
on the Supplementary Reserve in 1999 when he applied for the
patent – he was technically still a public servant – and therefore
the patent belonged to the Crown.
Following is the letter barrister and solicitor Edward W. Claxton
wrote to the Ministers of National Defence, Veterans Affairs and
Justice, outlining the dangerous precedent this ruling has on
members of the Canadian Armed Forces.
ON MARCH 13, 2016 I heard the news concerning the Federal
Court of Appeal Ruling in the matter of Louis Brown v Canada.
I was a member of the 2PPCLI cadets and became a Master
Cadet. When I was finished with the cadets I joined the 20th Field
Artillery Militia Regiment in Edmonton. When I moved to Ottawa
in 1966, I transferred to the 30 Field Artillery Militia Regiment in
which I served approximately five years. My late father, Norman L.
Claxton, CD, was a “boy soldier” who, upon turning 18, entered
Louis Brown, military veteran and entrepreneur, is in a battle with the
government over who owns his patent for inventing a chemical-resistent
material. Brown retired in 1993 but the government says he is a “public
servant” as he is on the Supplementary Reserve List. (nor environmental)
active service in January 1945. He continued in service after WWII
and served two terms in Korea. He remained in the military until
his retirement. My grandfather Edward J. Claxton served with the
2nd Canadian Battalion in WWI. He was twice wounded. He was
with that battalion on its entry into Germany after the armistice. He
continued in the militia after the war and became the Regimental
Sergeant Major of the Brockville Rifles.
As a militia veteran, I was apprised of the Supplementary
Reserve List. So far as I am aware, the only purpose of the Supple-
mentary Reserve List is to have an inventory of trained personnel.
The only obligations are for call up if one has special skills or
abilities needed by the military or, in case of a declaration of war,
a person on the Supplementary Reserve List (commonly known
as the Zed list) can be called up for the defence of Canada, a role
which I would have undertaken if our country needed my services.
“As a lawyer, I will refrain from making any comment on the faculties of
judgment exercised by the Federal Court or Federal Court of Appeal.”
That the Government of Canada would stoop so low as to
resort to the Public Service Invention Act to claim rights to a
veteran’s intellectual property is disgusting. With all due respect
to the Federal Court of Appeal, I feel that their judgment is
wrong in law.
It would be better for everyone if the Government of Canada
would forth with disavow this judgment and make it clear, by legis-
lation or regulation, that a person’s status on the Supplementary
Reserve List does not constitute one as being a “public servant”
for the purposes of the Public Service Invention Act or any other
Act. If one is called to active service then one has the status of
a public servant. To assert that a person on the Supplementary
Reserve List is a public servant at all defies common sense;
indeed, it is nonsense.
For one’s service to Canada in the military a person apparently
becomes disentitled to intellectual property at the whim of the
government! You may rest assured that I will do my utmost to “rally
the troops” to protest this outcome. I am going to do everything
in my power to excoriate the government for this outrageous and
unlawful appropriation or expropriation of intellectual property. In
a ‘free and democratic society’ it is unacceptable for the govern-
ment to expropriate the intellectual property of a citizen without
compensation. To do it on the pretext that the person is a “public
servant” because of his or her status on the Supplementary
Reserve List is an affront to every veteran in Canada.
As a lawyer, I will refrain from making any comment on the
faculties of judgment exercised by the Federal Court or Federal
Court of Appeal. If, however, I were advising a client in a similar
matter I would be advising an appeal.
As regards the Government of Canada, I have no hesitation
in denouncing, in the strongest possible terms, its unmitigated
duplicity in asserting that retired military personnel are public
servants because of their status on the Zed List.
I have already taken my first step, to let Mr. Brown know that
I support him and that I will be willing to contribute funds toward
an appeal to the Supreme Court of Canada.